Wednesday, December 21, 2016

David Rivkin and Elizabeth Price Foley propose five ways to restore the separation of powers that have gotten so out of balance in recent years. President Obama acted to usurp congressional powers, but the trend has been going on for longer.

First, Congress can amend the 1996 Congressional Review Act to require affirmative approval of major executive-branch regulations. The law now allows regulations to go into effect automatically if Congress does not disapprove them. The act has been used only once to overturn a regulation because it requires passage of a joint resolution of disapproval—which must be signed by the president. This requirement should be inverted: If Congress does not affirmatively approve a regulation, it never goes into effect.

Second, Congress could prohibit “ Chevron deference,” in which federal courts defer to executive branch interpretations of ambiguous statutes. Chevron deference is a judge-made doctrine that has aggrandized executive power, ostensibly to implement Congress’s intent. If Congress denounces such deference, it can simultaneously reduce executive power and encourage itself to legislate with greater specificity.

Third, Congress can augment its institutional authority by expanding its contempt power. The criminal contempt statute should require the U.S. attorney to convene a grand jury upon referral by the House or Senate without exercising prosecutorial discretion. Congress should also extend the civil contempt statute to the House, not merely the Senate, and enact a new law specifying a process for using Congress’s longstanding (but rarely invoked) inherent contempt authority.

Fourth, Congress can require that all major international commitments be ratified by treaty. A statute defining the proper dividing line between treaties and executive agreements would reassert the Senate’s constitutional role, provide clarification to the judiciary, and encourage communication and negotiation between Congress and the president.

Fifth, Congress can enact a law further restricting its ability to coerce states into adopting federal policies or commanding state officials to carry them out. While the courts have ultimate say on the contours of these federalism doctrines, a law could force greater consensus and debate, provide guidelines on Congress’s use of its powers, and signal to the judiciary a reinvigorated commitment to federalism.

It would be excellent if the GOP could take advantage of their power in Washington to enact some or all of these recommendations. Trump might not be eager to give up any power for the executive branch, but such actions would be one of the greatest contributions that they can make for the country.

Should President-elect Trump, once he's inaugurated, use his executive powers in the same way that you have?

I think that he is entirely within his lawful power to do so. Keep in mind though that my strong preference has always been to legislate when I can get legislation done. In my first two years, I wasn't relying on executive powers, because I had big majorities in the Congress and we were able to get bills done, get bills passed. And even after we lost the majorities in Congress, I bent over backwards consistently to try to find compromise and a legislative solution to some of the big problems that we've got — a classic example being immigration reform, where I held off for years in taking some of the executive actions that I ultimately took in pursuit of a bipartisan solution — one that, by the way, did pass through the Senate on a bipartisan basis with our help.

I was very proud of that. I went out of my way to make sure our help was behind the scenes so that Republicans didn't feel as if it was going to hurt them politically. At the end of the day, John Boehner and the House Republicans couldn't pull the trigger on getting it done. And it was only then, after we had exhausted efforts for bipartisan reform that we took some additional steps on immigration executive actions. So my suggestion to the president-elect is, you know, going through the legislative process is always better, in part because it's harder to undo.

Does the man even listen to himself? It's as if he lives in a fantasy world in which everything he did was justified because Republicans wouldn't pass the legislation that Obama wished. If the GOP won't do what Obama wants, the solution seems to have been to simply ignore them and do it as an executive action. If that was what the Founders had wanted, they wouldn't have bothered with checks and balances.

The Obama administration engaged in a calculated effort to dismantle an Energy Department program so it could focus on meeting the goals of the president's climate change agenda, even going as far as to fire scientists that disobeyed strict orders not to talk to members of Congress, according to a Tuesday report issued by the House Science, Space and Technology Committee.

The report showed the administration even attacked one of its own Energy Department scientists who stepped out of line with strict orders to deny lawmakers with information on a nuclear radiation program that it was seeking to scuttle to pursue its global warming programs more aggressively.

"Instead of working to understand the value of the [radiation program] for emergency situations, [Energy Department] management engaged in a campaign to terminate research programs that could divert funds from the President's Climate Action Plan," the House committee's report said.

NBC News has the story of how President Obama used the so-called "red phone" to draw a red line with Putin about interfering with the election.

In a statement, a senior White House official confirmed that the Red Phone was used on Oct. 31 to send a message to Moscow. "This action was part of our ongoing, rigorous efforts to press the Russian government to halt the actions of those responsible for these cyber attacks." The official declined to provide details of the message, however.

Obama claimed success for his message to Putin at a news conference last Friday.

"I felt that the most effective way to ensure that that didn't happen was to talk to him directly and tell him to cut it out and there were going to be serious consequence if he didn't," said Obama. "In fact, we didn't see further tampering of the election process."

Well this isn't very auspicious for Obamacare. The GAO reports that, during an undercover investigation of Obamacare applications, that 9 out of 12 fictitious applicants that they created to register for insurance were able to qualify and receive insurance. Apparently, this has been a continual problem. John Sexton reports,

The current report by the GAO did not include any new recommendations to the Department of Health and Human Services (HHS) because the GAO has previously issued recommendations after similar investigations found a failure to detect fake applicants. A report in 2014 found 11 of 12 fictitious applicants were able to get insurance. In October 2015 17 of 18 were approved. So the exchanges do seem to have improved slightly at fraud detection, though a 25% success rate several years into the program is really nothing to brag about.

Nate Cohn performs an autopsy to explain why Donald Trump won the Electoral College. He goes through a couple of theories and then concludes with the somewhat obvious point that Trump won because he was able to win the battleground states. His victories there were quite narrow, but our system awards the Electoral College votes on a winner-take-all basis (except for Maine and Nebraska).

Mr. Trump did very well in the battleground states. Depending on how the battlegrounds are defined, the vote there either broke for Mr. Trump or was virtually tied — a huge improvement over Mitt Romney’s showing in 2012.

Mr. Trump won a lopsided electoral vote tally from those states by narrowly winning four of the five states decided by around one point or less: Florida, Wisconsin, Michigan and Pennsylvania (Mrs. Clinton edged him out in New Hampshire). Outside of those five states, the electoral vote was basically tied, with Mr. Trump edging out Mrs. Clinton, 231 to 228 (and leading by the margin of small-state bias).

The imbalance between competitive and battleground states is somewhat similar to a regionalism issue, at least in a mathematical sense: Mrs. Clinton won the “blue states” by a wider margin than Mr. Trump won the “red states.” The rest of the country — the battlegrounds — voted Republican, and so did the Electoral College.

But this isn’t a regionalism issue. The “solid red” and “solid blue” states where Mr. Trump failed to make gains include a clear majority of the country’s Electoral College votes, population and actual votes. The regional anomaly was the Midwest, and it just so happens that in a winner-take-all system Mr. Trump’s strength in the Midwestern battleground states yielded a lot of Electoral College votes.

There’s a real demographic reason for it: Most of the traditional battleground states are much whiter, less educated and particularly less Hispanic than the rest of the country.

But the demographics alone don’t quite do justice to Mr. Trump’s victory in the Electoral College. In the end, he won the battleground states by just a one-point margin — but claimed three-fourths of their Electoral College votes.

He won four of the five closest states, winning 75 of 79 votes at stake.

There has never been a close election in the United States in which one candidate has claimed such a resounding electoral vote margin out of the closest states.

Cohn then goes on to indulge in some counterfactual daydreaming by asserting that the borders for many states were rather arbitrary. For example, the Florida panhandle was originally going to be part of Alabama. If it had been, those Republican votes would not have been there to give Trump the state. Actually, George W. Bush wouldn't have won Florida by a bit more than 500 votes in 2000 without the panhandle. That sort of historical trivia is fun, but doesn't mean all that much today except for giving Trump's opponents more to grumble about.

To be clear, you can also make plenty of changes that would benefit Republicans. You could reunify West Virginia and Virginia, to take an easy one.

The point is that the main bias of the Electoral College isn’t against big states or regionalism; it’s just toward the big battleground states. If they break overwhelmingly one way, that’s who wins. This is not exactly a high-minded Hamiltonian argument. There aren’t many justifications for letting a few close states decide a close national election. But that’s basically what the system does, and there’s nothing about those states that ensures they provide a representative outcome.

Exactly. So expect even more attention on the swing states next election.

While some experts have chalked up Trump's win as part of the populist movement that has swept across the country in this cycle, that is only partly true. There is also a deep grassroots conservative movement located in this state. One with a solid infrastructure that has been slowly winning over blue-collar Democrats and independent voters who are at odds with the rigid, radicalized progressives who run the Democratic Party in Wisconsin.